ITC
The International Trade Commission has modified its postponement of hearings under Section 337 until June 10, 2020. The ITC has also decided to close its building to the public until further notice.
District Courts
The District Courts for the District of Delaware, Eastern District of Texas, and Western District of Texas have extended their prior orders delaying jury selection and jury trials from May 1, 2020 until May 31, 2020.
USE OF ELECTRONIC OR TELEPHONIC APPEARANCES
The Federal Circuit
The Federal Circuit has announcedthat its May 2020 hearings will be conducted telephonically. As with the April 2020 arguments, live audio will be available each day of arguments and recordings of the arguments will be available on the Court's website at the end of each day.
Northern District of California
To ensure public access to court proceedings, the District Court for the Northern District of California has published instructions for members of the press and public to hear telephonic hearings or observe video-hearings. The Court will provide log-in criteria for specific hearings through PACER, on the individual judges' calendars, and via email at media@cand.uscourts.gov. However, the Court has cautioned that recordings, photographing, including screenshots, or rebroadcasting of such hearings of any kind are strictly prohibited.
The current public health guidelines to prevent the transmission of COVID-19 have impacted all facets of daily life. IP litigation is no exception. Parties to pending or future IP litigation should consider the effects of COVID-19 related restrictions and measures when developing a strategy for moving cases forward.
RESTRICTED ACCESS TO COURT AND GOVERNMENT BUILDINGS
In the early stages of the COVID-19 battle, many courthouses and government buildings throughout the United States sought to keep these institutions physically accessible. Early orders sought to reduce exposure by limiting access to those individuals with the highest probability of being carriers of COVID-19. For example, in mid-March, the District Courts of the Eastern District of Texas and Delaware sought to prohibit those who had travelled overseas in countries hard-hit by COVID-19 or those exposed to anyone who had, among others, from entering the courthouses.
However, as the pandemic has continued and courts have learned that COVID-19 positive attorneys have unknowingly visited these institutions, impacted courthouses and other government buildings have closed entirely out of an abundance of caution. For example, the Northern District of California has closed all courthouses except for the courthouse located in San Francisco until May 1, 2020. The United States International Trade Commission building in Washington, DC is closed to the public through at least April 24, 2020. Similarly, the PTAB has prohibited all in-person meetings indefinitely. The Federal Circuit has likewise prohibited physical attendance at April 2020 arguments.
Despite the physical closings and restrictions of these forums, cases are continuing to progress and some measures below impact procedural schedules and case strategy.
EXTENSION OF LIMITED DEADLINES
As many courthouses and government buildings restrict access as a preventative measure, one common trend across all forums has been the extension of certain deadlines.
Federal District Courts
Many federal District Courts, including those in the Eastern District of Texas, District of Delaware, and the Northern District of California have continued or vacated jury selection and jury trials scheduled on or before April 30, 2020 or May 1, 2020 and will be rescheduled for later dates by presiding judges. While these general and standing orders expressly apply extensions to jury selection and jury trials, judges within these districts may exercise their discretion in extending other case-specific deadlines as well. Judges within the Eastern District of Texas have been afforded the maximum latitude to extend other dates for in-person hearings, scheduling conferences, and other proceedings as they see fit. Similarly, while all deadlines pursuant to the Federal Rules of Civil Procedure and the District of Delaware's Local Rules are in effect, judges may exercise their discretion to change deadlines and continue any hearings, conferences, or bench trials.
In the District of Massachusetts, in addition to continuing all jury trials scheduled to begin on or before May 29, 2020, all mediations are also continued pending further order of the Court. The District Court for the Northern District of Illinois has gone slightly further. The Court has struck all civil case hearings, bench trials, and settlement conferences scheduled on or before May 1, 2020 and all civil jury trials on or before May 29, 2020 to be set at later dates. In addition, all deadlines in civil cases in this district were initially extended twenty-one days and have subsequently been extended an additional twenty-eight days on top of that (for a total of forty-nine days of extensions). As district court practices vary by jurisdiction, it is important for litigants to periodically check the district court's announcements to ensure the most up-to-date information impacting their cases.
While the District Courts above have imposed some limited extensions, there is a reluctance to project additional extensions in light of the dynamic nature of the COVID-19 response and precautions. For example, a recent request to continue a patent infringement trial scheduled to begin on June 1, 2020 in the Western District of Texas was denied as premature.
Thus far, the continuations and extensions in the Federal District Courts have been modest. As the fight against COVID-19 continues, these delays will need to be reassessed and revisited, along with their impact on litigation strategy. Managing both fact and expert discovery will be especially important in assessing the need for additional extensions in district court. Access to electronic and physical discovery in the time of temporary business shutdowns have downstream case implications for fact and expert discovery. These implications, in addition to strategic considerations surrounding remote depositions, could impact litigants' strategies surrounding requests for extensions in district court.
International Trade Commission
The International Trade Commission has ordered that all Administrative Law Judges postpone hearings under Section 337 until after May 12, 2020. This date could be subject to further extension and will be updated by the commission by April 24, 2020.
A review of recent ITC filings on EDIS suggests that the ITC's Administrative Law Judges are exercising their discretion to extend certain dates prior to the pre-hearing conference upon request of the parties as well. In addition, some procedural schedules that have recently been issued have been quite a bit longer than the typical 16-month schedule from the date of institution of an investigation. For example, the schedules recently approved in Investigation Nos. 337-TA-1192 and 337-TA-1193 were set with 19-month Target Dates. The longer schedules are due to the result of complications in discovery due to domestic and international stay-at-home restrictions, and the inability to do things like conduct international discovery or sensitive source-code review.
As many litigants seek the ITC as a forum due to the speed of its proceedings, an arising concern is whether the COVID-19 precautions could temporarily minimize this advantage of the ITC for Complainants.
PTAB
Under the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"), signed into effect on March 27, 2020, the Director of the United States Patent and Trademark Office (USPTO) has been granted broad temporary authority to provide relief at the USPTO. The Director exercised such authority by granting some limited extensions for certain patent filings.
Upon request, a 30-day extension for limited PTAB filings due on or between March 27, 2020 and April 30, 32020 due to the COVID-19 outbreak may be granted. These limited filings include a request for rehearing of a PTAB decision under 37 CFR §§ 41.125(c), 41.127(d) or 42.71 (d); a petition to the Chief Judge under 37 CFR § 41.3; a patent owner preliminary response in a trial proceeding under 37 CFR §§ 2.107 or 42.207 or any related responsive filing, and responses related to the patent owner's preliminary response under CFR §§ 314(b) or 324(c).
However, the Director has chosen not to extend this grace period to the one-year time bar to file for inter partes review, along with other statutory deadlines, at this time. This is an important consideration for current or would-be district court litigants for the coordination of district court and post-grant litigation strategy.
USE OF ELECTRONIC OR TELEPHONIC APPEARANCES
Notwithstanding the aforementioned extensions, litigation and contested matters will continue to move forward through the use of remote telephonic and video conferencing.
The Federal Circuit
The Federal Circuit will continue with its scheduled oral arguments this month. While some matters have been removed to be decided on the papers, the remaining cases will be argued telephonically. While there are advantages and disadvantages to arguing in person versus telephonically, the Court has cautioned that travel restrictions due to COVID-19 will not suffice as a basis for rescheduling the argument given the availability of telephonic oral argument. The Court will make live audio available for the April 2020 telephonic argument session and recorded arguments will be posted at the conclusion of arguments each day.
Federal District Courts
Inherent in the discretion afforded to district court judges to extend deadlines discussed above, is the discretion to hold conferences and proceedings telephonically or through video means. In the District of Delaware and District of Massachusetts, judges have been encouraged to conduct proceedings via phone or videoconferencing where practicable. While the Northern District of California has ordered that all civil matters be decided on the papers, it permits its judges to conduct hearings, case management conferences, pretrial conferences, settlement conferences, and ADR proceedings via phone or video to the extent he or she deems such a proceeding warranted. In the Western District of Texas, Judge Albright has cautioned that in patent matters, he will consider postponing Markman hearings only if alternative arrangements, such as videoconferencing are not practical. Litigants should consider both the subject matter being presented, the available presentation mediums, and the experience of the presiding judge when strategizing whether and how to proceed with case-dispositive hearings, such as Markman proceedings, remotely.
International Trade Commission
ITC employees have been teleworking since March 17, 2020. Beyond the suspension of imminent hearings and the scheduled extensions discussed above due to issues with conducting certain types of discovery, most investigations are still moving forward. For would-be complainants, it is important to note that Complaints are not officially accepted upon submission in EDIS despite the ITC's temporary waiver of paper filings at this time. Rather, the ITC urges complainants to submit complaints as early as possible to permit ITC staff review of the complaints for any procedural deficiencies. Moreover, those contemplating filing an action at the ITC should be sure to consider all discovery-related complications that might arise during this period of domestic and international isolation, as it could impact the schedule and speed of this otherwise expeditious forum.
PTAB
Similarly, contested matters at the PTAB are moving forward subject to minimal delays that could be imposed after request by the parties as detailed above. As of March 13, 2020, all interviews, and in-person meetings at the PTAB have been conducted by video or telephone. Again, COVID-19 related complications in securing discovery, including the likely need for video deposition of expert witnesses and challenges in securing stamped copies of references from reference institutions, should be considered when assessing action at the PTAB.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
